June 20, 2017
Today Yakima Superior Court Judge Douglas Federspeil sanctioned Hanford Government Contractor MSA for hiding documents and the existence of a witness who should have been disclosed as a part of the discovery process during the lawsuit. MSA’s former general counsel had reported that former CEO Frank Armijo had treated her with disrespect and paid her and other women below what men were being paid. She also reported that she was retaliated against, demoted, and forced to resign after she complained. She ultimately filed a discrimination and retaliation complaint with the EEOC. Between March 2016 and February 2017, the plaintiff asked for discovery on three separate occasions, which should have caused MSA to produce the EEOC complaint in response, but MSA secretly withheld the EEOC complaint and all related documents while claiming that it had provided all information and documents responsive to the plaintiff’s requests. The Court found “MSA’s May 23, 2016 discovery answer was ‘misleading,’ as it led plaintiff to believe that all ‘gender discrimination, whistleblower, and/or retaliation complaints, from 2011 to the present’ would be identified by MSA and produced.” Order at ¶80.
During the litigation, plaintiff served the former general counsel with a subpoena, which MSA knew would result in production of the EEOC complaint. MSA’s counsel attempted to quash the subpoena arguing to the Court that the request was a “was nothing more than a fishing expedition, and raised claims that the content of [the former general counsel’s] document production and testimony would be subject to attorney client privilege.” Order at ¶30. The Court denied the motion, and only then did MSA produce the EEOC complaint to the plaintiff. Judge Federspeil found that MSA waited to produce the EEOC complaint and the other documents until after learning that the Court would not quash the subpoena. Order at 33.
MSA violated a separate order issued on February 3, 2017, compelling MSA to produce documents “without further delay,” which should have also resulted in production of the EEOC complaint and related documents before the motion to quash was heard. Order at ¶23. The Court found that the EEOC complaint and related documents should have been produced in May 2016 and “the lack of disclosure in May 2016 with respect to both the external and internal complaints [by the general counsel and others] reveals either an incompetent investigation (i.e., a lack of a reasonable inquiry), or an intentional withholding of evidence. . . There is simply no reasonable excuse for these omissions, which necessarily call into question the claim that MSA consistently conducted a “reasonable, good faith search for documents.” Order at ¶22. The Court found, “there can be no question that defendant has stymied plaintiff’s ability to investigate the facts and thereby prejudiced her ability to prepare for trial.” Order at ¶90.
The imposition of sanctions for discovery abuses is mandatory. Order at ¶73. As a penalty, the Court ordered that plaintiff can reopen discovery, and the Court ordered MSA to pay plaintiff’s reasonable attorney’s fees and all costs related to the additional discovery caused by MSA’s misconduct, and ordered MSA to certify that it is not withholding any other responsive documents. Order at ¶¶96-97. A jury trial is set for September 11, 2017. Jack Sheridan, Ms. Atwood’s attorney, stated, “We appreciate Judge Federspeil’s attention to this matter, and we look forward to getting the discovery we need so we can get this case to trial in September.”